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Paxton v. Fluor Enterprises, Inc.

United States District Court, S.D. New York

March 3, 2017


          For the plaintiff: Brittany Sloane Weiner Marsha Mozammel Imbesi Law P.C.

          For the defendants: Amy Joy Traub Jacqlyn Rebecca Rovine Baker & Hostetler LLP


          DENISE COTE United States District Judge.

         Barbara Paxton (“Paxton”) has brought this action against her former employer, Fluor Enterprises, Inc. (“Fluor”), alleging that, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, and the New York State Human Rights Law (“NYSHRL”), she was not reasonably accommodated and discharged. On October 26, 2016, Fluor moved for summary judgment. For the reasons set forth below, the motion is granted in part.


         The following facts are undisputed or taken in the light most favorable to the plaintiff. Paxton was born in 1950 with a single cleft lip and single cleft palate. As a child, Paxton had three or four surgeries to address her cleft lip and palate, following which this condition was no longer visible to lay observers.

         Paxton was hired in 1998 by Fluor's predecessor, Grubb & Ellis Management Services, Inc. (“GEMS”), as an administrator handling construction projects for GEMS's contract with IBM. From 2000 until 2006, Paxton worked for GEMS in one of many cubicles situated in a single, large room (the “open landscape”). During that time, Paxton received positive performance reviews. Paxton testified at her deposition that she was repeatedly sick and absent from work as the result of sinus infections. During that period, Paxton's physician, Dr. Kevin Lieu, prescribed her medication on only four occasions.[1]

         In early 2006, Paxton asked the GEMS site manager, Raymond Andreassen (“Andreassen”), that she be permitted to sit in an enclosed office space. Paxton was relocated to an enclosed office. At Andreassen's request, Paxton provided a note from Dr. Lieu stating, “Paxton is recommended to avoid drafts due to sinus infections.” Around the same time, Paxton informed Andreassen that she had a cleft lip and palate and had undergone surgeries as a child to address this condition. Paxton also told Andreassen that the surgeries had left her susceptible to colds and sinus infections. Paxton remained in the office from February 2006 until September 2011. During that period, Dr. Lieu prescribed Paxton medication on 14 occasions.

         On October 1, 2011, Fluor replaced GEMS on the IBM contract and took over GEMS's office space. Many GEMS employees, including Paxton, were interviewed and hired for positions with Fluor. The only reference to Paxton's condition on her Fluor employment application was that she had a “special needs office environment.” As part of the transition from GEMS to Fluor, Fluor undertook a reorganization of Paxton's department, including reassigning Paxton to support a larger team with a different and more demanding set of tasks.

         Given this new team and role, Fluor determined that it would be necessary to move Paxton from her enclosed office to a cubicle in the open landscape. Informed by Andreassen that Paxton should be situated so as to avoid drafts, Fluor management sought to locate a cubicle with minimal airflow. Although Fluor measured the air in the proposed cubicles and found that they had an air flow velocity below one foot per minute, Paxton refused to move out of her office on the ground that it would interfere with her disability.

         In an email sent on the morning of October 26, 2011, Fluor's director of operations and management, Steve Short (“Short”), explained Fluor's decision that Paxton would be relocated to the open landscape and informed Paxton that Fluor would provide a letter and a medical certification form for her to deliver to her physician to document her disability. Rather than use Fluor's form, however, Paxton procured her own note from Dr. Lieu, which stated, “Ms. Paxton is suffering from bad URI/sinusitis/bronchitis, whenever she is exposed to drafts [o]r dusty environment due to her physical disabilities from previous surgeries. Therefore she has been advised to avoid such environment at all times.” On November 2, 2011, Paxton met with Andreassen and two of Fluor's human resources representatives, Mary Smith and Stephanie Livingston (“Livingston”). Andreassen brought Fluor's medical letter and certification form to this meeting. While discussing Fluor's and Paxton's concerns about Paxton's relocation and alleged disability, Paxton became upset and threatened to leave. Livingston warned Paxton that if she left the meeting, she would be reprimanded. Nonetheless, Paxton left, and Livingston decided to discharge Paxton. The following day, Fluor sent Paxton a letter informing her of this decision.

         Paxton commenced this action before the Honorable Analisa Torres on May 14, 2015. She brings claims against Fluor for disability discrimination, failure to provide a reasonable accommodation, hostile work environment, [2] and retaliation. Fluor moved for summary judgment on October 26, 2016. On November 22, 2016, the case was reassigned to this Court.


         Summary judgment may not be granted unless all of the submissions taken together “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Summary judgment is appropriate when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Smith v. County of Suffolk, 776 F.3d 114, 121 (2d Cir. 2015) (per curiam) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts in the light most favorable to the non-moving party. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992); Gemmink v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015), cert. denied, 136 S.Ct. 1684 (2016) (mem.). If the moving party makes this initial showing, the burden then shifts to the opposing party to establish a genuine dispute of material fact. El-Nahal v. Yassky, 835 F.3d 248, 252, 256 (2d Cir. 2016).

         The party opposing summary judgment “may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in the Rule, must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation omitted); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Conclusory statements, conjecture, and speculation are insufficient to create a genuine factual dispute, ” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 319 (2d Cir. 2008), as is “mere speculation or conjecture as to the true nature of the facts.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over material facts -- “facts that might affect the outcome of the suit under the governing law” -- will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In cases involving claims of employment discrimination “an extra measure of caution is merited in [considering] summary judgment” because “direct evidence of discriminatory intent is rare and such intent must often be inferred from circumstantial evidence found in affidavits and depositions.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation omitted). Nonetheless, “a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). Ultimately, the test for summary ...

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